There are right and wrong ways to dismiss an employee.
When it comes to fair and unfair dismissals, getting it wrong can mean you find yourself in an Employment Tribunal. This is why it is important to understand what amounts to a fair dismissal, an unfair dismissal and an automatic unfair dismissal.
The key ingredients to a fair dismissal are having a valid reason and acting reasonably in the circumstances.
A dismissal will be considered potentially fair for one of the following reasons:
- related to an employee’s conduct (e.g. theft)
- related to the employee’s capability or qualification for the role (e.g. long term sickness absence or performance)
- redundancy (e.g. business closure)
- a statutory restriction that prevents the employment continuing (e.g. a driver loses his driving licence)
- some other large reason (e.g. employee is handed a long prison sentence).
It is not enough that the employer has a valid reason. You must have acted reasonably in the circumstances in treating it as a enough reason for dismissing the employee.
It will be considered an unfair dismissal if:
- The reason for dismissal does not come into the scope of one of the five potentially fair reasons for dismissal stated above.
- The employer did not follow a fair disciplinary or dismissal process.
In cases of misconduct or performance, you should follow the procedures set out in the ACAS Code of Practice on Disciplinary and Grievance Procedures. Employment Tribunals will take it into account when assessing whether an employer has acted reasonably. If it is found that an employer has unreasonably failed to follow the relevant procedure in the Code, a tribunal may consider that the dismissal is unfair.
Likewise, in redundancy situations, the main elements to a fair redundancy process are:
- Warning employees of redundancies.
- Creating and applying fair and non-discriminatory scoring criteria.
- Consulting with employees and thinking about suitable alternative employment options for employees.
If you do not follow a fair selection or consultation process, you may find that the dismissal is deemed unfair.
An employee with at least two years’ service may be able to submit a claim to an Employment Tribunal against their employer of unfair dismissal. Claims must generally be submitted within three months of the date the employee’s employment was terminated.
Automatic unfair dismissal
In some cases, the dismissal will be automatically unfair.
You cannot select an employee for redundancy or dismiss them if the main or sole reason is that they are pregnant, on maternity leave or paternity leave or exercising any of their statutory rights. Likewise, it is not permissible to select or dismiss them for whistleblowing, being a part-time employee or being a member of a trade union.
In these cases, it does not matter how long the employee has been employed with you.
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